Meek v. Humphreys County

Decision Date05 November 1923
Docket Number23758
Citation97 So. 674,133 Miss. 386
CourtMississippi Supreme Court

Division A

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS Chancellor.

Suit by G. W. Meek and others against Humphreys County. From a decree for defendant, plaintiffs appeal. Affirmed.

Cases affirmed.

Green &amp Green, for appellants.

Point I. Sections 7080-82 Unconstitutional.--The first question, of necessity, presented is the validity of the Code sections whereunder defendants assumed to act. Under this section, the supervisors are exercising a limited special statutory authority, and, hence, all things requisite to the exercise of their jurisdiction must affirmatively appear upon the minutes. As said in Campbell v. Humphreys County, 128 Miss. 749.

See directly controlling, Craft v. DeSoto County, 79 Miss. 618. The same principle is fundamentally established in our jurisprudence. Adams v. Bank, 103 Miss. 753; Hinton v. Perry County, 84 Miss. 546; Garner v Webster County, 99 Miss. 565; Bolivar County v. Coleman, 71 Miss. 835; Henry v. Sunflower County, 71 So. 742; Sexton v. Coahoma County, 86 Miss. 384.

Now, in Morris v. Covington County, 118 Miss. 875, 80 So. 337, this court applied the doctrine of Laurel v. Rowell, 84 Miss. 435, and held, as quoted in approving it in Jackson v. Monroe County, 86 So. 769.

In the conclusion of the Morris Case, 80 So. 338, this court said: "The special property right that the abutting landowner has in a public highway is not to be damaged or taken from him without due compensation." The following authorities support the views announced above: Pearsall v. Eaton County Supervisors, 74 Mich. 558, 42 N.W. 77, 4 L. R. A. 193; Peace v. McAdoo, 46 Misc. 295, 92 N.Y.S. 368; King v. Mayor, 102 N.Y. 172, 6 N.E. 395; Kray v. Muggli, 84 Minn. 90, 86 N.W. 882, 54 L. R. A. 473, 87 Am. St. Rep. 332; Butterworth v. Bartlett et al., 50 Ind. 537; Petition of Concord and Pembroke, 50 N.H. 530; Kincaid v. Indianapolis Natural Gas Co., 124 Ind. 577, 24 N.E. 1066, 8 L. R. A. 602, 19 Am. St. Rep., 113; Town of Longmont v. Parker, 14 Colo. 386, 23 P. 443, 20 Am. St. Rep., 277; Tilly v. Mitchell and Lewis Co., 121 Wis. 1, 98 N.W. 969, 105 Am. St. Rep. 1007; Rainey v. Hinds County, 78 Miss. 308, 28 So. 875; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; I. C. Railroad v. State, 94 Miss. 759, 48 So. 561; 10 R. C. L., sec. 155, p. 177; 15 Cyc. 665; 37 Cyc. 193, 206.

See, also, Jackson v. Monroe County, 120 Miss. 125, 81 So. 788, where the court said: "This case was tried below prior to the decision of this court in Morris v. Covington County, 80 So. 337. This case established the plaintiff's right to damages in case of discontinuance of a public road, as to an abutting property owner, and would control all of the grounds of demurrer other than the first."

Now, section 4400 has its limitation under sections 4401 and 4402, and the only persons who can thereunder claim compensation are those who "shall claim compensation for the land taken for a public road, or for damages sustained by the construction of a road."

So, if this section does not provide notice expressly, then in and of itself as to these parties so thus damaged, it is unconstitutional. The amount of the notice, five days, is absolutely unconstitutional as to those residing outside of the state. Roller v. Holly, 176 U.S. 398, 409, 44 L. Ed., 520, 524, 20 S.Ct. 410.

The importance of this section of the Constitution as affecting the welfare of the citizenry of the state cannot be too strongly emphasized. The case of Illinois, etc., R. Co. v. Commissioners of Highways of Town Mattoon, 161 Ill. 247, 43 N.E. 1100, is a case almost identical with the case here.

Point II. Error to have dissolved injunction in so far as doctor Jackson, president of the board, was concerned. (a) By section 165, of the Constitution, it is expressly provided: "No judge of any court shall preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties."

This section came under the discussion in Railroad Company v. Kirk, 102 Miss. 41, 58 So. 710, 42 L. R. A. (N. S.) 1172, Ann. Cas. 1914 C, 970; also in Insurance Company v. Drug Co., 83 So. 676, 121 Miss. 510, and Shireman v. Wildburger, 87 So. 658, and thereunder it is fundamental in Mississippi that a judge interested may not preside.

In Broom's Legal Maxims (7 Ed.), 116, the maxim is given thus: "It is a fundamental rule in the administration of justice that a person cannot be judge in a cause wherein he is interested; nemo sibi esse judex rel suis jus dicere debet; . . ."

And it has been laid down in Day v. Savadge, Hob. 85, 87, cited arguendo 5 Exch. 671, that "even an act of Parliament made against natural equity" as to make a man a judge in his own case is void in itself; for jura sent immutabilia and they are legis legum. See 3d Cooley's Black. Com., 298, note.

This rule is so well settled that, with the utmost deference, we fail to appreciate why, when injunction constitutes the sole admeasurement of appellants' relief as to the disqualified member, the writ did not run.

Point III. Board of supervisors, having theretofore decided the cause, were without power to re-try that which had already been decided. In this cause, it appears without contradiction that at the April Term, 1922 (Tr. 14) an order had been entered. This order was unanimously passed.

In Broom's Legal Maxims (8 Ed.), pp. 94-99, it is said: "It is a fundamental rule in the administration of justice that a person cannot be judge in a case where he is interested." See, also, State Board of Health v. Roy, 22 R. I. 538, 48 A. 802; State v. Clancy, 30 Mont. 529, 77 P. 312; Lindsay-Strathmore Irrigation District v. Superior Court, 182 Cal. 315, 187 P. 1056; Coke on Littleton, sec. 212.

Point IV. Attorneys' fees excessive. By the decree, seven hundred dollars was allowed as the amount of attorneys' fee. The only evidence was the testimony of Honorable M. G. Blackwell, of the Belzoni Bar, as to attorneys' fees in the community. Counsel never produced any competent testimony upon the sole issue wherefor damages might be allowed. The question is not as to what would be a reasonable compensation for defending the case, but only for damages caused by the wrongful issuance of the injunction. In short, in this cause, the sole thing involved is the right to condemn a right-of-way substantially thirteen feet long by sixty feet wide, and what would be a reasonable attorneys' fee for services in a case of that kind is not even competent because the injunction bond is not security for fees rendered in the conduct of a cause on the merits. Curphy v. Terrell, 89 Miss. 632.

So that, to award seven hundred dollars attorneys' fees is absolutely wrong, and in that regard, the decree should be reversed.

Point V. The board of supervisors have no authority within the town of Belzoni. While it is true that the Constitution vests in the supervisors full jurisdiction over rods, yet still under section 3330, of the Code of 1906, each municipality constitutes a separate road district; Hemingway's Code, section 5827.

Under section 3808, Code of 1906, counties and municipalities may co-operate in maintaining principal highways, but under section 3338, Hemingway's Code 5835, the municipality is vested with full jurisdiction in a matter of streets.

Mortimer & Sykes, for appellants.

We shall not go into the constitutionality of the statutes involved in this litigation as the same have so ably been dealt with by associate counsel. Section 3808, Hemingway's Code, is clearly to the effect that the changing of a public road can never emanate with the board of supervisors, but this action must be brought about by an external force. Section 7085, Hemingway's Code, has reference to appeals to the circuit court from the order of the board of supervisors in these matters.

When may the courts interfere? The first question that presents itself is when may the courts interfere with such boards as regards these discretionary matters? It has been uniformly held that they may do so in the following cases: In the event of fraud or the gross abuse of discretion. Crawfordsville v. Broden, 14 L. R. A. 268, 130 Ind. 149, 28 N.E. 849. In case of fraud. Faucett v. Mt. Airy, 63 L. R. A 870, 134 N.C. 125, 45 S.E. 1029. When the powers of the board are being fraudulently, abusively or oppressively exercised. Wagner v. Bristol Belt Line, 25 L. R. A. (N. S.) 1278, 108 Va. 594, 62 S.E. 391. Where the board is acting without the limits of the power conferred upon them by statute but are guilty of malice, corruption, or fraud, or actuated by an unreasonable, arbitrary or capricious spirit. Legrange v. Overstreet, 31 L. R. A. (N. S.) 951, 141 Ky. 43, 132 S.W. 169. Where the board is exceeding its power, or fraud is imputed or shown, or where there is a manifest invasion of private rights. Newcomb v. Indianapolis, 28 L. R. A. 732, 141 Ind. 451, 40 N.E. 919. Where the board is exceeding its powers. Charleston v. Littlepage, 51 L. R. A. (N. S.) 353, 73 W.Va. 156, 80 S.E. 131. Where a municipality undertakes to destroy private property which is not a nuisance per se. Remington v. Walthall, 31 L. R. A. (N. S.) 957, 82 Kan. 234, 108 P. 112. When the ordinance authorizes an illegal or wrongful disposition of property acquired. Roberts v. Louisville, 13 L. R. A. 44, 92 Ky. 95, 17 S.W. 216. Where the board is acting beyond its power or if the power of discretion is manifestly being abused to the oppresson of the citizens. Mt. Carmel v. Shaw, 27 L. R. A. 580, 155 Ill. 37, 39 N.E. 584. Where they are acting in an...

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